Ingerton v. First National Bank & Trust Co. of Tulsa, 6326.

• Decision Date: 11 February 1961
• Docket Number: No. 6326.,6326.
• Citation: 291 F.2d 662
• Parties: Robert R. INGERTON, Appellant, v. FIRST NATIONAL BANK AND TRUST COMPANY OF TULSA, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

291 F.2d 662 (1961)

Robert R. INGERTON, Appellant, v. FIRST NATIONAL BANK AND TRUST COMPANY OF TULSA, Appellee.

No. 6326.

United States Court of Appeals Tenth Circuit.

January 4, 1961.

Rehearing Denied February 11, 1961.

Dickson M. Saunders, Tulsa, Okl., and Howard F. Saunders, Amarillo, Tex., for appellant.

Hess Crossland and James R. Ryan, Tulsa, Okl., for appellee.

MURRAH, Chief Judge and BRATTON, PICKETT, LEWIS and BREITENSTEIN, Circuit Judges.

MURRAH, Chief Judge.

This is an appeal from an order overruling the appellant's motion under Rule 60 F.R.Civ.P., 28 U.S.C.A., to set aside a deficiency judgment and declare the same paid and satisfied. The original judgment entered in the federal district court in Oklahoma was for the unpaid balance on a promissory note made to the appellee, First National Bank of Tulsa, by the judgment-debtor and his wife. It foreclosed the mortgage on oil and gas properties made to secure the mortgage indebtedness and also a lien on attached property not covered by the mortgage. Pursuant to the judgment, all of the mortgaged and attached property was appraised, advertised and sold, and the proceeds applied on the mortgage debt. About one year after the sale and confirmation, the appellee Bank moved for determination of a deficiency judgment. When the matter came on for hearing pursuant to order, the court noted that Ingerton, the judgment-debtor, had been duly notified and proceeded to find the fair, reasonable value of the mortgaged and attached property as of the date of the master's sale, and to credit the same, together with some unidentified sums in the hands of the receiver, against the judgment and to render a deficiency judgment for the unpaid balance.

The judgment-debtor died about a year later and a little more than four years after the entry of the deficiency, the appellant, who is the son of the judgment-debtor, brought this motion as his legal representative, basing his claim to relief upon two grounds: (1) lack of due notice of the hearing on the deficiency; and (2) upon Section 686, Title 12 O.S.A., which provides comprehensively for the foreclosure and sale of mortgaged property in Oklahoma, and, as amended in 1941, pertinently provides in effect that if no motion for a deficiency judgment is made within 90 days from the date of the foreclosure sale, the proceeds of such sale "regardless of amount shall be deemed to be in full satisfaction of the mortgage debt and no right to recover any deficiency in any action or proceeding shall exist."

The motion for deficiency judgment having been filed more than 90 days after the date of the sale of the mortgaged property, the central question is whether in these circumstances the statute operates to satisfy the debt and deprive the court of authority to render a deficiency judgment, or whether, as the trial court held, the 90-day provision is a short statute of limitations which must be affirmatively pleaded as a defense to the motion for deficiency judgment, and no such plea having been made, the statute is inoperative.

Some point was made in the trial court concerning the appellant's capacity to maintain the motion under Rule 60 F.R.Civ.P., but the record does not reflect whether the trial court was requested to rule on the matter. It is again urged here and we note it because of its primary importance to the maintenance of the motion. Subparagraph (b) of Rule 60 authorizes the court to relieve "a party or his legal representative" from a judgment on the grounds that it has been "satisfied, released, or discharged." Here the judgment-debtor died intestate in Texas seized of property there after entry of the deficiency judgment. By virtue of Section 37 of the Texas Probate Code, V.A.T.S., the property vested "* * * immediately in his heirs at law * * *." The movant is a son and heir at law. And we have recently said, following general law, that the term "legal representative" is "sufficiently broad to include any person who stands in the place and stead of one deceased in respect to property, whether transferred to him by operation of law, or otherwise * * *." Security Insurance Co. of New Haven v. White, 10 Cir., 236 F.2d 215, 219. We conclude that the appellant had standing to move for relief against the judgment.

The judgment-creditor takes the rather anomalous position that its own judgment which appellant seeks to set aside is dead under Oklahoma's 5-year dormancy statute, and there is consequently nothing for the court to act upon. Section 735, Title 12 O.S.A. provides that "If execution shall not be sued out within five years after the date of any judgment * * * such judgment shall become dormant, and shall cease to operate as a lien on the estate of the judgment debtor * * *." This statute might be controlling if the entry of the deficiency judgment was a mere clerical act so that the dormancy statute would run against the original instead of the deficiency judgment, for the motion to vacate the deficiency judgment was filed more than five years after entry of the original judgment. Since the 1941 Amendment to Section 686, however, the entry of...